Alarm in Israel at reports of possible ICC legal action over Gaza

Israeli officials are increasingly concerned that the International Criminal Court (ICC) is planning to seek arrest warrants for their military and political leaders on suspicion of war crimes.

Reports suggest Prime Minister Benjamin Netanyahu could be among them.

The ICC, based in The Hague, has been investigating Israel’s actions in the occupied territories for the past three years – and more recently the actions of Hamas as well. It has the power to charge and try individuals for the most serious crimes under international law.

It has previously issued arrest warrants for leaders including Russia’s Vladimir Putin, Muammar Gaddafi of Libya, and Ugandan warlord Joseph Kony.

Mr Netanyahu has called the prospect of senior Israel figures joining the wanted list “an outrage of historic proportions”, accusing the ICC of attempting to paralyse Israel’s ability to defend itself.

But the fact that he’s chosen to make such strident public comments suggests that, behind the scenes, such a scenario is being actively discussed.

While the ICC has not confirmed the Israeli claims, when Chief Prosecutor Karim Khan KC visited Israel and the occupied West Bank last December his message was a clear one.

The British barrister toured the sites of Hamas’ attacks in Israeli villages close to the Gaza fence, which Hamas-led gunmen burst through on 7 October.

He also met political leaders, and travelled to Ramallah to speak to the families of Palestinian victims about their experiences in Gaza and the West Bank. He condemned the violence suffered by civilians on both sides, and promised to investigate.

“All actors must comply with international humanitarian law,” he clarified in a statement at the time. “If you do not do so, do not complain when my office is required to act.”

Mr Khan said the 7 October attacks – in which Hamas-led gunmen killed about 1,200 people, mostly civilians, and seized 253 hostages, according to Israeli tallies – represented “some of the most serious international crimes that shock the conscience of humanity, crimes which the ICC was established to address”.

In Israel’s case, his concerns were twofold. He stressed the obligation to conduct its military operation in Gaza according to “clear legal parameters that govern armed conflict”.

Israel has been accused of failing to sufficiently protect civilians during its months-long bombardment, although it insists it takes all necessary measures to avoid casualties. The Hamas-run health ministry in the territory says more than 34,500 people have been killed there since the war began, and that many of that number are children.

Mr Khan also underlined the need for humanitarian aid to get into Gaza, with access to food, water and medical supplies a basic right for civilians “without further delay, and at pace and at scale”. He also urged Hamas not to divert or misuse the supplies when they did arrive, after accusations by Israel that its members were looting trucks and stealing aid, stopping it from reaching the wider population.

Israel isn’t a member of the ICC and it says the court has no jurisdiction over it. But the court has ruled that since 2015 it does in fact have jurisdiction over the West Bank, East Jerusalem and Gaza after the Palestinians ratified its founding treaty, the Rome Statute, as the State of Palestine.

No Western-style democracy has had an ICC arrest warrant issued for its leader before. If it happens to Mr Netanyahu, he’ll be the first. Israelis have particular concerns about the stigma and potential isolation that would come with it.

Michael Oren was Israel’s ambassador to the United States between 2009 and 2013. He points to the recent case brought by South Africa at the International Court of Justice (ICJ), which accused Israel of genocide against the Palestinian population in Gaza – an accusation Israel vehemently rejects.

In January, the court issued an interim ruling that ordered Israel to take steps to prevent genocidal acts in Gaza, but stopped short of telling it to stop its military offensive.

“Israel emerged from those proceedings relatively unscathed, but the fact that the proceedings were held at all meant that Israel had lost the battle,” he told the BBC.

“They should not have been held at all, and certainly it’s a blow to our international standing and our security. Because a country whose leaders are accused of presiding over war crimes, that country is more vulnerable than a country that isn’t.”

Sir Geoffrey Nice KC, another British barrister, led the prosecution of the former Serbian president Slobodan Milosevic for war crimes at the International Criminal Tribunal for the former Yugoslavia (ICTY).

He points out that the actions of both sides in this conflict are within the ICC’s focus.

“Any investigation will not just be the Israeli Defense Forces and political and military leadership but also Hamas,” he told the BBC.

“It’s to be hoped that alleged Hamas fighters and leaders are not all shot on sight, that they are detained and made available for trial by an international tribunal.”

He also addressed suggestions that the ICC could come under political pressure to reconsider its decision-making.

“Governments around the world, particularly large and powerful governments, are there to protect their country’s interests.

“So if they see a trial coming along, or an investigation… that would cause them as a country great reputational damage, and if they reckon they can interfere with the trial or the investigative or trial processes to save them from that reputational damage, then they’ll do that, because they are acting in the interests of their country.”

The timeframe for issuing warrants can vary, with weeks and even months sometimes elapsing between the point at which the ICC prosecutor requests it, and judges grant it.

Sometimes the details can be kept confidential if it’s deemed that making them public would lessen the prospect of an arrest.

Such a move against Mr Netanyahu, his political colleagues or Israeli military commanders would have practical implications too. It would affect their ability to travel widely, as Rome Statute nations are obligated to hand over visiting individuals with outstanding warrants against them. However, some of those nations have ignored ICC warrants in recent years.

Former Israeli Ambassador Michael Oren believes the eventual impact would be far wider, changing the narrative of Israeli society

“Generally, it responds to love. It doesn’t respond to aggression. If you want to get concessions out of Israelis do not hit them over the head, embrace them,” he said.

“All of these measures tend to move the political needle in this country rightward and not the other way. It would have a boomerang effect, and rather than opening pathways to possible diplomatic process it will likely constrict it.”